Arizona weekly journal-miner., 1887-01-19
OPINION
0s SWaoo -. v. Noseos sn s1so 0ay.
 asa.aoastln 0bsa ovls.

gvand jury of shis county O( the crime ot
 malicious ibel changing that the defend
 an, did in ,be JeuRNAL MINER of
 which the defendant is editor and pub
 iishes, uala~fully. v,llfully and maliei-
 eusly' injase an.' vildy the good name
 and to impeaeh the repuasioa of James 1 A. Bayard, the setresaly o( the tesritcry
 of ArisonA and to bring him into public
 scand2l, hatred. infamy and disgrace
 which publication ls alleged to be as fol-
 lo~s: "Sinee Secretary Bayard is sos
 much co his disnisy to say whether or
 not he said he thought more of an In-
 dian then of poor whi,e man. we will 1 eAts that be did and vas overheard by tso men"
 4 dema,s-f IS inserPosed for several ! causes. only one Uf which is is neceesa-
 gy lo no,.c-, viz whether the words
 published are bbe!ous per sr. The question os ambisuiues and innuendoes does nos arise. These words speak tor
 themselves and are net in the nature of ins; s;:.uations Our statute de6nes libel
 to be a.malicious defamation express ed
 either by printing CT by signs or pictures
 or the ike. tending to blacIea the mem. ory Of oce who is dead, os to impeach 'he honesty integrity virtue or reput,. ton. os publish the natural defecss of
 one whe is alive. and thereby to expose
 him or her ,o puoIi: hstrrd, contempt or iiicule."
 And in the same section it is stated 1 that the jury shall have the right to de-
 ,ermine the flaw and the facts. and in the
 criminal procedure the same words are used.
 CounseI for the territory insist tdat he only province .G the court is to s,t and determine oniy the sau;ssibiiisy cf esi dence and cannot stase the iAw. The csurt in al czses must determine whether . cause of action ex- ists. Nov if the court holds that tho
 words alleged to De published are ioel- 1 ous, and the ease gees Co the jury. then
 the jury may 'nos regard the opinion of the csuit and caa render . verdict that
 they sfe not ibelous and they ean ngh h,- fully do 60.
 Practically in all criminal cases the jury judges the iss and the facts, but in cases oeheS than that of libel they would In my vies violate their oath, # they rendered a verdic, againss the la~ as propoundrd by the cUu't Nos So in prosecutions tor hbsl. There t is their duty t. determine the law as well as ,he
 facts. fn Kenyon v& Palmer xviii Lsa 377 there was demurrer upon the grounds shas the language dsd not of
 itself constitute cause of Actien and no
 dcfamatory sense is ststed os specified
 and the court held on the demurrer that Lthn1Glees Set forth in the indictment is no, l,beious ll1e l1 1iiaaihe.ee1ale-oottiasi . ihe
 People vs. Jerome Iss Mich. I4s, the court held on demune, that the words
 of the indictment were mt lioelous.
 By the constitution of oOth those states
 the jury ID ioei cases determioe the law
 and ,he fM ts. Gresniczf on Evidence
 vol. ,rd 9. I79 says, ".he right Of lhe jury :n crimiaaI csses. and particularly
 In trIais for libel, has also been the sub
 je, { oi much discussion. It was fornei-
 iy he'd ,hat where there were no ciicum-
 stances which raised question of just- czt on in poin, of law the jury were
 bound 10 dnd the defendant gu,sty
 # ;hey found the foot cf publication and the truth of tho ianuendoes; these two matters of fact being all
 which they were permtted Co enquire into. In the United States this doc,ripe is no, known 70 have deen rece.ved, but on the contrary, it has been 50 dis,asre- ful as b have occas,oned expsess con- st.turional and .s t',.c-v Yovi.ions ,o the effect that, in all such cases the jury may render general veroict upon the whole mater under the issue of ntt guilty. rhs language of the constitution of some oi the ssates is, that "tbe jary shall be the judges ot" and in other states. "shan have right to dstermine" the law and the facsA h many oi the constitutions t is provided that the jury may to this "unde. the direction Of the cour,' os "aiter having received the direction of the cs0s, a in osher cases" but in other eonstkusions the provision s unqualified.
 Upon these psovisioos tu,eses Gue.- iion has been saised. whether the jury} were bound to foilos the directions oi the court in matters of law, or were at Ibestv to d,Sesard them and determine | the law foe themselves.
 On thi. point the decisioas are not en- tirely uniform, and some of them are not perfectly clear from the want of dis bet~een,b powers possessed by the jury ts ind general verdict, coatrary to the direction of the court; in [ matter ef lsv, without being accounta- ble for 70 doing. and their right % to do without violation of their oath and du- ty. But the ve,ehs st opinion is vastly against the right of the jury in any ease to disregard the lav as stated by the cour; and ou the eonuary. is in favor Of their duty so b governed by such rules as the court may declare to be the law of the land; the meaning of the con- stisutonal provisions being merely. 'that the iurv are the sole iudRes of all .he